New Mexico Historical Review Volume 73 Number 4 Article 2 10-1-1998 The Treaty of Guadalupe Hidalgo as a Living Document: Water and Land Use Issues in Northern New Mexico Michael C. Meyer Michael M. Brescia Follow this and additional works at: https://digitalrepository.unm.edu/nmhr Recommended Citation Meyer, Michael C. and Michael M. Brescia. "The Treaty of Guadalupe Hidalgo as a Living Document: Water and Land Use Issues in Northern New Mexico." New Mexico Historical Review 73, 4 (1998). https://digitalrepository.unm.edu/nmhr/vol73/iss4/2 This Article is brought to you for free and open access by UNM Digital Repository. It has been accepted for inclusion in New Mexico Historical Review by an authorized editor of UNM Digital Repository. For more information, please contact [email protected]. The Treaty of Guadalupe Hidalgo as a Living Document: Water and Land Use Issues in Northern New Mexico MICHAEL C. MEYER AND MICHAEL M. BRESCIA During the course oftheir research"historians often hope to discover in the archives a dusty, previously unknown bundle of documents that can provide fresh insight and a more nuanced perspective of their topic. Doctoral students in particular carry that thrilling possibility with them as they begin their dissertation research. Some historical documents, however, have been consulted for quite some time and simply refuse to gather the archival dust of the centuries. Historians who ask new ques­ tions of old and well-known documents also can breathe new life into our understanding of the past. Moreover, certain important primary sources should be periodically revisited because they not only resonate deeply with many communities but they also help influence an entire series ofpolitical, economic, social and cultural relationships. The Treaty ofGuadalupe Hidalgo is a good example ofa living docu­ ment with profound significance for many communities throughout the Southwest but especially for New Mexico. Signed and ratified in 1848, the treaty ended hostilities between the United States and Mexico but it also contained several important protections for Mexican citizens who, through no fault of their own, suddenly found themselves residing in the United States. These protections-property guarantees in particu­ lar-could be passed on to their heirs and other successors in interest. It is those specific provisions ofthe treaty that sustain its living legacy. While many have been invoking the treaty's property guarantees ever Michael C. Meyer is Professor Emeritus of History at the University of Ari­ zona. He is the author of several books, including Water in ihe Hispanic Southwest: A Social and Legal History, 1550-1850 (rev. 1996). Michael M. Brescia is a doctoral candidate and instructor in the Department of History at the University of Arizona. His research interests include Hispanic water rights and the history of the church in colonial Mexico. 321 322 NEW MEXICO HISTORICAL REVIEW OCTOBER 1998 since the two countries signed the document on 2 February 1848, for others the l50th anniversary of the treaty has sparked a renewed inter­ est in its implications. In recent months the treaty has been discussed in the mainstream press at academic conferences, marches and demonstra­ tions, and it has even prompted proposed legislation in the United States Congress. I The treaty has commanded much greater attention on this side of the border for several reasons. Its property guarantees directly affect the material and cultural well-being ofa host of rural communities in the Southwest, particularly in northern New Mexico. Finally, despite their historical sensibilities, most Mexicans would rather forget than memorial ize an event that lost half of their national territory. This essay explores the property protections of the Treaty of Guadalupe Hidalgo as they relate to water and land-use issues in New Mexico's Rio Arriba. An important provision of the treaty pledged the United States government to protect "property of every kind." A textual analysis of the language employed in Article VIII clarifies the precise meaning of that term as it was understood at the time of treaty ratifica­ tion. Moreover, the nature ofproperty in New Mexico prior to 2 February 1848 remains vital to understanding the legal and cultural dimensions of the treaty's contemporary significance. The manner in which property was conveyed under Spanish, Spanish colonial, and Mexican law re­ veals much about the Hispanic judicial legacy bequeathed to the U.S. court system. Water, grazing, timber, and firewood, as well as the water­ ing of stock animals, were part and parcel of the property of civil law. Whether granted by the Spanish king, Mexican president, or their repre­ sentatives, these property rights defined and continue to define a nexus of social relationships as well as a complex ofhuman interactions in the rural communities throughout northern New Mexico. Spanish explorers and conquistadors who departed from the port towns of Seville and Cadiz for the New World left behind a country in tremendous flux. For almost 700 years the various Iberian kingdoms that made up what later became Spain had been engaged in wars of recon­ quest against Muslim invaders. During those seven centuries of gradual reconquest Spaniards defined and redefined their notions of law, citi­ zenship, and municipal life. The Muslims were eventually defeated when their last stronghold, Granada, fell in 1492, only a few months before Spaniards sailing with Christopher Columbus encountered the New World. Despite a historiographical tradition that has painted the fifteenth­ century Spain of Ferdinand and Isabella as backward and stagnant, the documentary record reveals a historical tapestry of vibrant town life, politically astute citizenry, and a wide range of economic activities such as agriculture, livestock raising, trade, and cottage industries. A Spaniard's sense of political and economic participation in community life was predicated upon certain social and legal considerations that grew out of the Reconquest. The legal system that emerged illustrated MEYERAND BRESCIA 323 intimate linkages between citizenship, town life, and access to and man­ agement of natural resources. Prior to the Columbian voyages of the late fifteenth and early six­ teenth centuries, land in Spain could be owned by monarchs, by commu­ nities, or by individuals. During the Reconquest the kings of Castile often rewarded individuals and communities with tracts of land in return for effective military service. 2 These grants were awarded from royal lands known as tierras realengas or tierras baldias. While the land granted to private individuals is easily understood by those familiar with common law traditions, land granted to communities, however, has been poorly understood. The Spanish crown conveyed most ofthe tierras realengas to towns and communities. Once conveyed, these lands became known as tierras concegiles-that is, lands owned by a community and governed by a town council (concejo). The land no longer belonged to the State but instead became the private property ofthe community and was set aside to be used, in perpetuity, for the benefit of that community. By the end of the fifteenth century most of the tierras realengas had been replaced by tierras concegiles. Scores of individual communities now owned most ofthe Spanish land mass. Because of serious misunderstandings of Span­ ish property law, it is of major importance to understand that these com­ munities were not merely occupants of the land, they were the landowners.3 ' As landowners, the Spanish municipalities granted plots of land to individuals for their private use (for a house and a garden on which fruits and vegetables could be grown). These small individual plots were held in fee simple and, once a series of obligations had been satisfied, could be bought, sold,Jraded or passed on to heirs. Some plots of land were also set aside as propios, or income-producing lands, for the towns. The town councils usually rented these lands out and the proceeds were used to defray the costs ofpublic works, municipal government, or sim­ ply to ease the tax burden. As alienable property, these propios could also be sold if the purpose was to produce income for the municipal treasury. In addition to granting individual plots and retaining individual plots as propios, the towns also set aside certain lands'---often very extensive lands-as common property. The theory behind common land was that nobody had the right to appropriate for themselves resources proffered by nature alo'1e; that is, resources produced without human interven­ tion.4 The co'mmon lands could not be alienated in any way. They could not be bought or sold but they could be used without any tax burden by the citizens of the community for certain purposes: for recreation, for pasture, for the watering of livestock, for the gathering ofwild fruits and nuts, for hunting, fishing, and for cutting wood. Citizens ofthe commu­ nity, rich and poor alike, enjoyed equal access, but citizens of other 324 NEW MEXICO HISTORICAL REVIEW OCTOBER 1998 towns did not unless specifically granted permission by appropriate municipal authorities. The average Spaniard would have found it diffi­ cult to make a living, support a family, and contribute to the community without adequate access to the commons. Individual citizens comprising the Spanish town clearly did not own the commons; the town itself owned them. But through the right of a property concept called usufruct, each citizen had a property interest in the commons. In the civil law of property, usufruct is the right to use and enjoy the property of another (in this case the property of a town), and to draw profit from it provided that such an act does not alter the pur­ pose or substance ofthe property being used.s Almost all ofthe grazing, watering of stock animals, and wood-cutting in Spain occurred on the common lands.